We encountered significant confusion (including our own) as to what the Federal Communications Commission (FCC) actually will be approving in its June 18 meeting regarding changes to the Telephone Consumer Protection Act (TCPA). However, after talking with FCC staff, outside lawyers and consultants who work closely with the regulatory agency, we've clarified a lot. So here's a rundown of what is known to be in the new rules, and a very brief refresher on the TCPA.

The TCPA

  • The 1991 Telephone Consumer Protection Act (TCPA) restricts most telephone research calls to cell phones by requiring express prior consent to call using an automatic telephone dialing system (“autodialer”).
  • 58.8% of U.S. households can only be reached on a cell phone.1
  • Manual dialing can increase the cost of telephone studies 2-5 times over autodialer-only studies.2
  • Dialing accidents are not an effective legal defense and penalties run from $500 to $1,500 per violating call.
  • Trial lawyers have discovered that MR can be a lucrative target for TCPA class actions.

The five changes made by the FCC Order

  1. Telecommunications carriers can implement call blocking technology. Carriers previously had been reluctant to do so on legal grounds (Title II of the Communications Act), but those grounds are now waived.
  2. Consumers will be able to revoke consent to receive autodialer calls and robocalls, in any reasonable way and at any time. "Reasonable" is not defined.
  3. Someone autodialing a cell phone number that has been reassigned to a new subscriber may do so once. On the next use of the number, they are liable for calling with an autodialer without express prior consent. The first call may be a call that doesn’t connect, or a text to which no one responds. The order contains no assurance of fair notice before liability begins.
  4. The new order clarifies the definition of an autodialer as any device that could have the capacity to dial random or sequential numbers, including a preselected list of numbers. FCC staff have clarified that the definition will include preview dialing, and potentially anything short of using a rotary dial phone.
  5. Some calls will be excluded from the new rules, including some urgent and emergency calls and texts, such as bank fraud alerts and prescription renewal calls. There will likely be a cap on the number of such calls and texts to any given customer.

What's next?

  • All communications, meetings and comments need to be completed by the end of the day on June 10, after which the FCC goes into a "quiet period" before the vote.
  • We're working on formal comments in response to the FCC with one of our allies.

1 Blumberg SJ, Luke JV. Wireless substitution: Early release of estimates from the National Health Interview Survey, January to June 2014. National Center for Health Statistics. December 2014. Available online: http://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless201412.pdf

2 Informal estimate range from interviews with MRA members.

This information is not intended and should not be construed as or substituted for legal advice. It is provided for informational purposes only. It is advisable to consult with private counsel on the precise scope and interpretation of any laws/regulation/legislation and their impact on your particular business.